Corte di giustizia UE/2015

62015FO0114 [OSCURATO:PERSONA] [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 10 November 2015 ( *1 ) ‛[OSCURATO:PERSONA] service — Applicant not represented by a lawyer — Application signed by the applicant in her capacity as a lawyer — Non-rectifiable defect — Manifest inadmissibility — [OSCURATO:PERSONA] 81 of the Rules of [OSCURATO:PERSONA] F‑114/15, ACTION brought under [OSCURATO:PERSONA] 270 TFEU, applicable to the EAEC Treaty pursuant to [OSCURATO:PERSONA] 106a thereof, Małgorzata [OSCURATO:PERSONA] , residing in Warsaw (Poland), applicant, v [OSCURATO:PERSONA], defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of S. [OSCURATO:PERSONA], [OSCURATO:PERSONA], H. Kreppel and J. Svenningsen (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: W. [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By application received at the [OSCURATO:PERSONA] on 11 August 2015, [OSCURATO:PERSONA] brought the present action for, in essence, the annulment of the decision of 15 April 2015 by which the [OSCURATO:PERSONA] (EPSO) informed her that she had not passed the ‘[OSCURATO:PERSONA]’ organised in Competition EPSO/AD/293/14, meaning that she was not eligible to participate in the tests at the [OSCURATO:PERSONA] in that competition, and the annulment of the decision of 11 June 2015 by which EPSO informed her that the competition selection board had, after reviewing its initial decision, confirmed that decision. 2 Pursuant to [OSCURATO:PERSONA] 4 of Decision 2002/620/EC of the [OSCURATO:PERSONA], the Council, the [OSCURATO:PERSONA], the Court of Justice, the Court of Auditors, the [OSCURATO:PERSONA] and [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of the Regions and the [OSCURATO:PERSONA] of 25 July 2002 establishing [EPSO] ( OJ 2002 L 197, p. 53 ), the present action, although formally brought against EPSO as the defendant, must be deemed to be brought against the [OSCURATO:PERSONA] since it concerns requests and complaints relating to the exercise of the powers conferred on EPSO under [OSCURATO:PERSONA] 2(1) and (2) of Decision 2002/620/EC (see, to that effect, judgment of 16 October 2013 in Italy v [OSCURATO:PERSONA], T‑248/10 , EU:T:2013:534 , paragraphs 25 to 27 ). Admissibility 3 [OSCURATO:PERSONA] 81 of the Rules of Procedure, where the action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the [OSCURATO:PERSONA] may give a decision by reasoned order without taking further steps in the proceedings. 4 It is apparent from case-law in this connection that there is no requirement to have legal representation in order to submit a complaint under [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’) or a request for review, such as that which gave rise in the present case to the decision of the selection board in Competition EPSO/AD/293/14 of 11 June 2015 not to invite the applicant to the [OSCURATO:PERSONA], although the parties concerned may nevertheless take legal advice even at the pre-litigation stage (see judgment of 9 March 1978 in Herpels v [OSCURATO:PERSONA], 54/77 , EU:C:1978:45 , paragraphs 46 to 48 ). 5 However, pursuant to the third and fourth paragraphs of [OSCURATO:PERSONA] 19 of the Statute of the Court of Justice of the [OSCURATO:PERSONA], applicable to proceedings before the [OSCURATO:PERSONA] by virtue of [OSCURATO:PERSONA] 7 of Annex I thereto, in order to subsequently bring an action before the [OSCURATO:PERSONA], a party, within the meaning of those provisions, must be represented by a third person, in the present case a lawyer authorised to practise before a court of a [OSCURATO:PERSONA] or of a [OSCURATO:PERSONA] which is a party to the Agreement on the [OSCURATO:PERSONA] (orders of 5 December 1996 in Lopes v Court of Justice, C‑174/96 P , EU:C:1996:473 , paragraph 8 ; of 13 January 2005 in Sulvida v [OSCURATO:PERSONA], T‑184/04 EU:T:2005:7 , paragraph 8 , and of 13 February 2012 in Ayres de Abreu v EESC, F‑123/11 , EU:F:2012:17 , paragraph 11 ). The requirement imposed by [OSCURATO:PERSONA] 19 of the Statute of the Court is based on a view of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as his client needs (judgment of 12 June 2014 in Peftiev, C‑314/13 , EU:C:2014:1645 , paragraph 28 and the case-law cited therein). 6 Thus, pursuant to the first subparagraph of [OSCURATO:PERSONA] 45(2) of the Rules of Procedure, the original of the application must bear the handwritten signature of the applicant’s lawyer and not of the applicant himself. That signature requirement is intended, in particular, first, to ensure that responsibility for the execution and content of that procedural document is assumed by the authorised person who must be selected by the applicant for the purposes of satisfying the obligation to be represented and, secondly, to eliminate the risk that that document is, in fact, written by someone other than the author authorised for that purpose (see, to that effect, order of 17 January 2007 in Diy-[OSCURATO:PERSONA] ve Ticaret and Akar v [OSCURATO:PERSONA], T‑129/06 , EU:T:2007:11 , paragraph 29 , and judgment of 23 May 2007 in [OSCURATO:PERSONA] v Eistrup, T‑223/06 P , EU:T:2007:153 , paragraphs 50 and 51 ). 7 In the present case, it is clear from the application that it was signed by the applicant herself, and therefore that the obligation, required in order to bring an action on the basis of [OSCURATO:PERSONA] 270 TFEU, to be represented by a third person was not observed. 8 In this connection, the fact that the applicant is a member, as a lawyer, of the Bar in Gdańsk (Poland) is irrelevant since, as the Court has held on several occasions, given that no derogation from or exception to the obligation to be represented is provided for by the Statute of the Court or Rules of Procedure of the [OSCURATO:PERSONA], the submission of an application signed by the applicant himself, even if he is, as in this case, a lawyer authorised to plead before a court of one of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], cannot be sufficient for the purpose of bringing an action (see order of 5 December 1996 in Lopes v Court of Justice, C‑174/96 P , EU:C:1996:473 , paragraph 10 ). 9 Moreover, the absence of a handwritten signature on the application by the lawyer instructed by the applicant to represent him constitutes, as such, an infringement of the first subparagraph of [OSCURATO:PERSONA] 45(2) of the Rules of Procedure and is therefore not among the formal irregularities that are capable of being rectified, after the expiry of the period within which proceedings may be brought, under [OSCURATO:PERSONA] 50(6) of the Rules of Procedure. The requirement of a hand-written signature on the part of the lawyer representing the applicant, in the same way as infringement of the obligation to be represented per se , must therefore be regarded as an essential procedural rule and be applied strictly, so that failure to comply with it leads to the inadmissibility of the action on the expiry of the period within which proceedings may be brought (see, to that effect, judgments of 22 September 2011 in Bell & Ross v OHIM, C‑426/10 P , EU:C:2011:612 , paragraph 42 , and of 23 May 2007 in [OSCURATO:PERSONA] v Eistrup, T‑223/06 , EU:T:2007:153 , paragraphs 48 and 51 ), which in the present case occurred on 21 September 2015, in accordance with [OSCURATO:PERSONA] 91(3) of the [OSCURATO:PERSONA]. 10 Admittedly, on 11 August 2015, when the application bringing proceedings was lodged, the period within which the applicant could bring proceedings had not yet elapsed, so that, until 21 September 2015, she could have submitted an application, that time signed by a lawyer whom she had instructed to represent her. However, it must be pointed out that it was not for the [OSCURATO:PERSONA], in the period between those two dates, to draw that matter to the applicant’s notice in order to make good her lack of diligence in observing requirements such as those provided for in the third and fourth paragraphs of [OSCURATO:PERSONA] 19 of the Statute of the Court and the first subparagraph of [OSCURATO:PERSONA] 45(2) of the Rules of Procedure of the [OSCURATO:PERSONA] (see orders of 8 November 2007 in Belgium v [OSCURATO:PERSONA], C‑242/07 P , EU:C:2007:672 , paragraph 23 , and of 13 December 2013 in Marcuccio v [OSCURATO:PERSONA], F‑2/13 , EU:F:2013:214 , paragraph 33 ). In any event, the [OSCURATO:PERSONA] does not have the power to take a decision relating to the admissibility or inadmissibility of an action and therefore it cannot provide any indication to the parties in this respect which pre-judges the position to be adopted by the [OSCURATO:PERSONA] (order of 15 March 1984 in Vaupel v Court of Justice, 131/83 , EU:C:1984:114 , paragraph 10 ). 11 It follows from all the foregoing considerations that the present action must be dismissed as manifestly inadmissible, without there being any need to serve the application, submitted by the applicant herself, on the defendant, bearing in mind in this connection that the right to be heard, as enshrined in [OSCURATO:PERSONA] 41 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], is not infringed by a decision not to serve the application on the defendant institution where, as in the present case, an action is dismissed as manifestly inadmissible on the basis of [OSCURATO:PERSONA] 81 of the Rules of Procedure (see orders of 5 July 1999 in Gluiber v Council and [OSCURATO:PERSONA], C‑57/99 P , EU:C:1999:352 , paragraphs 14 and 15 , and of 13 February 2012 in Ayres de Abreu v EESC, F‑123/11 , EU:F:2012:17 , paragraph 9 ). Costs 12 [OSCURATO:PERSONA] 100 of the Rules of Procedure, the [OSCURATO:PERSONA] is to give a decision as to costs in the judgment or order which closes the proceedings. 13 In the present case, since the [OSCURATO:PERSONA] has ruled in the present action without serving the application on the defendant and has therefore prevented the defendant from incurring any costs, the applicant is required to bear solely her own costs, provided that she has incurred any, given that she has not used the services of a lawyer other than herself. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed as manifestly inadmissible. 2. [OSCURATO:PERSONA] shall bear her own costs. Luxembourg, 10 November 2015. W. [OSCURATO:PERSONA] S. [OSCURATO:PERSONA] ( *1 )   Language of the case: English.